*1 No. 79SA349 Martinelli, Dill, Carlson, Joseph Robert L. F. Charles George Campbell, Denver, Dennis and the Degenhart, City and County municipal v. The District Court in and for corporation County Denver, Colorado, District, Second Judicial and the Honorable Leonard Plank, P. one of the thereof Judges
(612 1083) P.2d February Decided *4 Goldfarb; James E. Greengard, D. & Richard Greengard, Elliott Stonbraker, Dill, P.C., Dill, for petitioners. H. Alan Jon Holm and Grover, Browne, Gorsuch, Willing and C. Walker Kirgis, Campbell, Klein, for respondents. Stephen
En Bañe. the of the Court.
JUSTICE ROVIRA delivered opinion under C.A.R. 21. The original brought petition- This is an proceeding dis- enforcing ers seek a writ the district court from respondent prohibiting the Denver Police De- of certain files and maintained covery reports by the court to enter a order precluding partment, requiring protective alternative, In the seek a writ discovery. petitioners requiring such an court, camera before it enforces to conduct respondent discovery, and to excise from the files and materials asserted to examination We issued a rule to show cause and now beyond discovery. absolute, make the rule the alternative relief granting by peti- tioners. Denver (Denver), are the petitioners County
Denver Police and individual officers Department (department), police Petitioners are defendant in a civil by employed department. parties action in the Jerre D. Malone brought (Malone). respondent 15, 1976, Based on an arrest which occurred on Malone July alleges: (a) assault and the individual officers and battery by police negligence arrest; effecting (b) their his false arrest and malicious part prosecu- tion; First, Fourth, Fifth, Ninth, Tenth, violations (c) and Four- Constitution, teenth Amendments to the States and violations of United Constitution; Colorado (d) among all defendants to com- conspiracy arrest, mit the assault and false malicious and consti- battery, prosecution, violations; tutional de- (e) negligence on the of Denver and the part selection, in the and retention of the individual partment supervision, officers. damages Malone seeks actual and in the amount of police special $325,000 $500,000. damages in the amount of exemplary
Pursuant to C.R.C.P. Malone served the with a re- department documents, seeking quest production opportunity inspect, inter alia: file maintained for each of
(1) complete personnel department officers; the individual defendant police documents, memoranda, data, notes, and all
(2) writings, “[a]ny reports, or the like . . . which job correspondence, pertain past performance, with rating, and conduct of the individual officers in connection the per- officers”; of their duties as formance internal into the investigation July department’s
1976, arrest. *5 convenience, For of we refer to the materials as the requested purposes (the designation referring files” and the “S.I.B. latter reports” “personnel Bureau, and encom- Investigation of the Staff department’s to the reports materials). categories the second and third requested passing and Malone to the objected request production, The petitioners 37. The to C.R.C.P. discovery pursuant respon- filed a motion compel and S.I.B. be reports dent court ordered that the files personnel produced for an in camera inspection. After that the court entered an inspection, motion to in its The granting discovery entirety. order Malone’s compel Malone’s only by court also ordered that the files and be reports inspected counsel, and that the contents of the files and be discussed be- reports only tween Malone and his counsel.
The seek to of the files and discovery personnel petitioners preclude on the that: are irrelevant to the causes of grounds (1) S.I.B. reports they Malone; materials; are brought by (2) (3) discovery action they privileged of the individual rights would violate the constitutional privacy police defendant; officers named as and are from dis- exempted parties to section C.R.S. and section 24-72-204(3)(a)(II), covery pursuant 24-72-305(5), (1978 C.R.S. 1973 and Supp.), specified provi- sions of federal law. statutory
I.
The Claim Irrelevance
The
contend
that the information contained
initially
petitioners
neither
the subject
in the
files
“relevant to
personnel
matter involved in the
action” nor
calculated to lead
pending
“reasonably
evidence,”
of admissible
within the
of C.R.C.P.
discovery
meaning
Court,
Our discussion in Lucas v. District
140 Colo.
26(b)(1).
P.2d 1064
makes it
(1959),
clear that the standard of relevance for pur
26(b)(1)
under C.R.C.P.
is not
to the stand
poses
equivalent
trial,
ard for
of evidence at
and that
informa
admissibility
nonprivileged
tion
bearing on” the
causes of action is discoverable
“generally
pending
Id.,
under the rule.
the following of information: made the su- types performance reports officers; orders, of the individual as- pervisors petitioner police demotions, commendations; signments, con- promotions, “information other cerning litigation”; concerning articles “copies newspaper subject officer.” The S.I.B. contain information to: com- relating officers; made citizens against individual records ac- plaints police tions taken in to citizen on the officers’ response complaints; “reports handling different situations.” many matter,
As a some or all of this information general could proba- tive of the instances of misconduct on department’s knowledge specific officers, individual their toward such part police propensities misconduct, if The information could also be any. probative efforts to the officers and to minimize the department’s supervise
169
misconduct,
of
reasons for retain-
and
the department’s
of such
occurrence
Investigation
the Staff
by
officers after
resolution
ing individual police
the officers.
against
of
complaints
Bureau
citizen
of misconduct or
(i.e.,
knowledge
propensities
Denver’s
These facts
officers,
officers, its
to
and
supervise
efforts
by
toward misconduct
to
officers) could be critical
retaining
proof
individual
the reasons for
tort
se
liability
negligence
of Denver’s independent
Malone
by
the officers. See generally
lection,
and retention of
supervision,
W.
Handbook
Seavey,
213
Agency
Restatement
(1958);
(Second)
§
of
Center, Inc.
Stock
Agency
the Law
Western
82(B) (1964).
§
Cf.
of
of
Oatman,
Sevit,
Inc.,
372,
Colwell
v.
195 Colo.
The order of the respondent ex does not indicate whether court files and S.I.B. reports personnel deter in the files and in order to amined the materials contained We there 26(b)(1). within the of C.R.C.P. meaning mine their relevance to conduct an in camera it for the necessary respondent fore believe of relevance findings of the files and to make reports, specific examination (within the files and reports to individual items of material contained in as to of those ma discovery of C.R.C.P. disallow meaning 26(b)(1)), of terials, it to be irrelevant to Malone’s causes if which determines any, C.R.C.P. 26(c)(1)). action (pursuant
II. The Claim Privilege reports, discovery In opposing on a com reliance place principal qualified Denver and the department “official infor referred as the variously mon law evidentiary privilege, Comment, Discovery mation,” or privilege. “executive” “governmental,” Privilege, and the 76 Government Documents Information Official Evidence J. Wigmore, 8 2378-2379 (1976); Colum.L.Rev. 142 §§ Breier, 7, Wood (E.D.Wis. 11 rev. 54 F.R.D. (McNaughton 1961); stated, gov sanctions nondisclosure 1972). Broadly privilege information, files, or or instrumentalities of agencies reports, ernmental instrumentalities, or when “dis those agencies memoranda maintained by United States public would be harmful interest.” closure O’Neill, (E.D.Pa. 1979). 81 F.R.D. 666 the context is significant official information privilege1 1 (a) privilege: scope our two specifically from the discussion forms We exclude Reynolds, (see 345 military generally Stales diplomatic United secrets which relates to (1953)); (b) identities infor relates to the that which 73 S.Ct. 97 L.Ed. U.S. (see generally of crime government commission supply the with information about the mants who 2374(f)). Wigmore, 8 J. at § 26(b)(1), litigant
civil under since that rule allows discovery C.R.C.P. matter, which is relevant to “any privileged, obtain added). Under this matter involved in the action” subject pending (emphasis therefore, rule, and to the extent that come within the reports sought files and S.I.B. official infoimation privilege, are discovery. Malone protected When the official information is raised in privilege opposition 34,2 for civil request discovery under C.R.C.P. 26(b)(1) C.R.C.P. *7 make trial court must an independent determination of the extent to which the privilege applies to the materials to be sought discovered. This determination is the result of the ad hoc balancing (a) of: the discover- materials; ant’s interests in disclosure of the and (b) the government’s in Platt, Inc., United States v. & terests in their Leggett confidentiality. Dominic, 655, F.2d 1976); 542 658 Cir. (6th v. 469 F.Supp. Crawford O’Neill, 260, United States v. (E.D.Pa. 262 1979); 666; at supra, Rizzo, Frankenhauser 339, v. (E.D.Pa. 59 F.R.D. 343-344 1973); Associates, Assured Investors Insurance Co. v. National Union Life Inc., 228, 362 So.2d 233 (Ala. 1978); Los Angeles v. Superior Court, County Los 778, Angeles, 785, 33 Cal. App.3d 109 Cal.Rptr. 365, 142, supra, at 143. (1973); 369 76 Colum.L.Rev. The trial court must balance competing interests through an in camera examination of the materials for which the official informa tion is privilege claimed.3 Such a review enables the trial (a) court: to al low or disallow as to individual items of material for which the claimed; (b) is or privilege to excise or edit from individual items those matters which it determines come to within the scope or privilege; (c) take other measures protective C.R.C.P. 26(c). Rizzo, Breier, Frankenhauser v. Wood v. supra; Cook v. supra; King County, 9 Wash. App. 54, 50, 659, 510 P.2d 662 (1973); 76 Nixon, 142, supra, at 168-171. See also United States v. Colum.L.Rev. 683, 3090, 418 U.S. 94 S.Ct. 41 United States v. (1974); L.Ed.2d 1039 providing is of materials. erly [3] “which constitute or contain matters within the [2] Black Sheraton v. C.R.C.P. claimed, reject governmental a “as 34 allows a civil “specific broad, Id.; well [76] as nonparticularized Colum.L.Rev. agency Corporation, designation precise litigant and certain reasons” for instrumentality 142, [371] description” claim of the F.Supp. supra, request at claiming 97, of each item of material privilege, [101] production preserving Rule (D.D.C. 1974). made with privilege 26(b).” of documents and confidentiality must aid respect The trial court which thé\ an tangible things of each trial entire may prop court by privilege item. group
171 L.Ed. 727 73 S.Ct. Reynolds, U.S. court in this in camera to be considered the trial
The factors litigation the nature of the balancing vary widely, depending discovered. Because the materials to be and of the doctrine of stare basis, on an ad hoc the effect of the process proceeds information privilege decisis in cases requiring application of the official Breier, Rizzo, 344; Wood v. Frankenhauser at supra, is limited. O’Neill, 666; States 11; at 76 Colum.L.Rev. supra, United supra, However, allegations litigation arising po at 144. claimed for files misconduct, information privilege when the official lice the incident on (concerning maintained by police department based, the officers in are or about which the misconduct allegations advantage following the trial court has the incident), volved in the to be considered in applying privilege, developed formulation factors Rizzo, in Frankenhauser supra: the ex- (1) considerations should be examined: following least the
“[A]t by discourag- which disclosure will thwart governmental processes tent to information; (2) upon citizens from ing giving government impact disclosed; their identities having who have information of given persons self-evaluation and governmental consequent pro- to which degree disclosure; (4) will chilled whether the informa- gram improvement *8 whether the (5) data or evaluative sought summary; party tion is factual defendant in criminal any the is an actual or seeking discovery potential incident to follow from the reasonably likely either or pending proceeding (7) has been (6) investigation completed; in whether question; police have arisen or any intradepartmental disciplinary proceedings whether suit is nonfri- investigation; (8) plaintiffs arise from the whether may faith; sought whether the information (9) and in brought good volous sources; the im- or from other available other through F.R.D. at to the case” 59 plaintiffs of the information portance 344. factors to be con- range illustrative of the
We this formulation as adopt the official information privilege sidered the trial court applying court, we include in our opinion As an aid to the respondent such cases. these ten factors to application limited discussion following It is not our intention to preclude of the case before us. the circumstances consideration, court’s factors from for the trial advancing, the litigants gov- and the included in the Frankenhauser formulation. The discoverant information claiming pri- the official instrumentality ernmental agency the trial additional factors for suggest are free to supra) (see fn. vilege when such conducting balancing especially its process, court’s benefit in circum- to the particular with appropriate respect additional factors are is claimed. case in wV.ch privilege stances of the that informa- Factors (1) argue Denver and the department (2). in the is contained citizen-complainants tion from procured advance, If as reasons particularized applying and S.I.B. reports. effect of disclo- chilling to the files and reports, possible the privilege citizen- such information from procuring sure on the of dis- complainants and the adverse possible impact complainants identities, avoidance of any of their the trial court could consider closure identities through excising complainants’ such adverse impact rate, At we are doubtful that “rare in- from the files and reports. of a test of disclosure made after application comprising stances enumerated here would deter citizens detailed standards such as those Rizzo, Frankenhauser to the revealing police.” information at 344. supra,
Factor the official in- As the reason for (3). principal policy applying files and S.I.B. Denver and reports, formation privilege on the of in- knowledge part advance department proposition dividual officers that the information to S.I.B. investi- they provide police will later be to disclosure in civil will have a detri- gators subject litigation communication between the officers and mental effect on frank open This should be to careful investigators. proposition subject scrutiny. that their investigators “knowing Because officers police report be used them or their fellow officers in either crimi- might against actions,” we “the nal or doubt that addition of departmental disciplinary civil sanctions to criminal and ones would end can- possible departmental Breier, supra, Wood dor or result in refusal to make at 13. reports.” Contra, Perini, Los (N.D.Ohio 1968); Kott 283 F.Supp. at Angeles, supra, 109 Cal. Rptr.
Factor Materials in files and which consti- investigatory tute “evaluative are within the of the official in- summary” typically formation status for such materials at least privilege. Privileged provides against chilling “governmen- effect of disclosure on partial protection tal self-evaluation consequent program improvement.” Rizzo, 344-345; Frankenhauser v. 76 Colum.L.Rev. *9 supra, at 160-161. Denver and the have indicated that the department Malone contain personnel reports by periodic per- officers, formance made of the by police reports supervisors petitioner and that the S.I.B. contain recommendations for internal reports discipline or exoneration of those officers. the trial court Unless determines that clearly outweighs Malone’s need for these evaluative materials the depart- ment’s interest in it should the official information confidentiality, apply to the evaluative materials and disallow of them privilege Malone, 26(c)(1). to C.R.C.P. pursuant
Factors (5), (6), (7), There is no indication that these fac- (8). this tors to the circumstances of case. apply
173 Factor As indicated Denver’s knowl- (9). in Part I of this opinion, of misconduct or toward misconduct on the of edge its propensities part officers, officers, efforts to its and the city’s city’s rea- police supervise sons for individual officers after the resolution of citizen retaining police them be critical to Malone’s cause of action for complaints against may selection, negligence on the of Denver in the and reten- part supervision, tion of the individual officers. Denver and the petitioner police department source, have not suggested other than the files and S.I.B. re- critical facts. See which would enable Malone to determine these ports, Dominic, Therefore, supra, at 263. unless such an alterna- Crawford court, tive source is out to the trial factor favors pointed discovery by some, all, Malone if not of the files and reports.
Factor reasons, For these same (10). (10), factor importance case, the information to the favors This tenth factor plaintiffs discovery. “weightiest” has been described as the of the factors set forth in the Dominic, Frankenhauser formulation. supra, at 263. Crawford It is not from the order of the court com apparent, respondent whether the court test to pelling discovery, applied proper determine the extent to which interests in Malone’s disclosure of the files Denver’s and the interests in their con reports outweigh department’s in We therefore direct the court to conduct an fidentiality. respondent camera examination of the files and and to make specific findings course, the claim of ruling, The court’s should disallow dis privilege. to C.R.C.P. items of covery, 26(c)(1), material which it determines to come within the of the official information privilege.
III.
The
Violation
Claimed
Officers’
to
Rights
Privacy
Constitutional
argument
third
is that
petitioners’
compelled discovery
the materials contained
files and S.I.B.
would vio
late the individual
officers’
to
petitioner police
rights
privacy, guaranteed
clause
the due
of the Fourteenth Amendment and other
provi
States Constitution.
the officers cite no au
Although
sions
United
of this
we assume that
intend to refer
thority
support
proposition,
right
to that
to
which
“the individual inter
aspect
privacy
protects
Roe,
matters.” Whalen
avoiding
est in
disclosure of
429 U.S.
personal
599,
869, 876,
64,
See also Nixon v.
589,
(1977).
97 S.Ct.
51 L.Ed.2d
73
Services,
General
425, 457,
2777,
Administrator
433
97 S.Ct.
U.S.
Gonzalez,
Plante v.
(1977);
53 L.Ed.2d
575 F.2d
denied,
cert.
1978),
Cir.
We will to as the right refer to this aspect privacy Plante, at 1132. While its contours are “right confidentiality.” defined, right yet fully confidentiality encompasses “power selves, whom, and for control what we shall reveal about our intimate *10 174 Harless, Associates, Reid and Inc. v. Byron, Schaffer,
what
purpose.”
83,
State ex rel.
This
Schellenberg,
(Fla.
1978).
right
360 So.2d
92
App.
absolute,
engage
balancing
no means
and the courts must
in a
cases. Nixon v.
right
when
applying
specific
Administrator,
Plante,
2777-2778;
1134;
Shuman
at
supra,
supra,
at
449,
v.
470
457-459
Philadelphia,
(E.D.Pa. 1979).
F.Supp.
Cf.
Milnes,
409, 413-414,
1163,
v.
Colo.
527 P.2d
1165 (1974);
People
186
Dill,
123, 130-131,
Davidson v.
(1972);
180 Colo.
503 P.2d
161
Berman
41
People,
Colo.
(2) is disclosure nonetheless to serve a state inter- required compelling est? so, if will the necessary disclosure occur in that manner which is least
intrusive with to the right to respect confidentiality? (1) The claimant’s nondisclosure. “An legitimate expectation es-
sential constitutional claim of disclosural requisite is that privacy the claimant have a ‘legitimate in the expectation privacy’ in- particular formation or communication in of disclosure danger by state action”. Administrator, at 94. See Schellenberg, supra, Nixon supra, 433 U.S. at 465.
First, the claimant must show that he or she has “an actual or subjective disclosed,” as, that the expectation information . . . not be for by showing that he or she example, divulged information to the state to an pursuant understanding that it would be held in confidence or that the state would disclose the for information stated purposes only. Schellenberg, at 94-95.
Second, the claimant must show that the material or information which he or she seeks to against disclosure is protect “highly personal sensitive” and its disclosure would be offensive and to a objectionable sensibilities. Id. reasonable person 95. The Schellenberg ordinary interest,” order of posits “descending and constitutional sensitivity to which the claimant’s objective of nondisclosure is expectation to be determined. At the ranking are those materials and top infor- mation which reflect the “intimate of the claimant with relationships” Shuman, Id. at 95. Fults other supra; Superior Court in persons. Cf. Sonoma, County 88 Cal. 152 App.3d Cal.Rptr. (1979). Below this ranking: “the lower tiers would include . . . progressively beliefs [the claimant’s] habits; material; and self-insights; his routine personal autobiographical name, address, status, his marital finally, present employment, *11 which constitute his irreducible together may anyone to who has identity reason to his at acknowledge existence.” 360 So.2d 95. course, case, of on the circumstances of the individual is
Depending, it less or in likely ranking that information materials the lower tiers of this will come within the zone of to protection right confidentiality. (2) The a state requirement interest. compelling of
Even if
that
it is determined
the claimant has a legitimate
that
expectation
the
personal materials
information in
will
be disclosed
question
action,
state
a
state
through
interest can
compelling
override the constitu
Plante,
tional
to
right
confidentiality which arises from that expectation.
Davidson,
supra,
supra, 180 Colo. at
at 1134.
(3) Least intrusive means. When it is determined that a state interest compelling mandates disclosure of otherwise protected information, materials or the trial court must further into the inquire manner which in the disclosure will occur. Disclosure must be made only manner, in served, with consistent the state to be interest which will in trude least on the to Id. 96. See also claimant’s at right confidentiality. Administrator, Roe, Nixon v. Whalen supra; supra.
It to remains apply general these principles to facts case us. It before is not apparent, the order of the court respondent whether court compelling discovery, in the engaged tri-partite balanc ing inquiry necessary application the constitutional confi right to We dentiality. therefore direct the court an respondent to conduct camera examination of files to and make specific findings on the petitioner officers’ claims based on right. that constitutional
First, the court should determine respondent whether of the ma- any terials which and information it has to previously determined be relevant to action Malone’s causes of and nonprivileged come within the officers’ therefore, legitimate nondisclosure and are as expectation a threshold matter, within the zone protected by right, interests constitutional to confidentiality.
Second, the court should determine whether the in- respondent state terest in the ascertainment of truth in “facilitating legal connection with as to context of case sufficiently compelling proceedings” v. Superior Fults confidentiality. expectations such override Court, at 213. supra, Third, if the court determines that it is to com- respondent necessary and information pel discovery materials which come within the zone of it right confidentiality, should by the constitutional protected interests offi- which intrudes least on through petitioner do means only so the nature of In this we note nonintrusive rights. respect, cers’ court will conduct an in camera exami- to which pursuant respondent determine their rele- and S.I.B. nation of the status, vance, right their in relation their status privileged will allow or disallow dis- to which confidentiality, pursuant material, excise individual items or edit from of individual items covery which it to be irrelevant or and take privileged, matters determines those Fults 26(c).4 measures C.R.C.P. other protective Administrator, Court, see Nixon 213; generally Superior supra.
IV. *12 Statutory The Claim Exemption of be is that argument The final petitioners’ discovery Malone such exempted pursuant discovered are from by wholly 1973, that the S.I.B. 24-72-204(3)(a)(II), C.R.S. and section 24-72-305(5), are to section similarly exempted discovery pursuant of The two cited are a com- (1978 Supp.).5 provisions parts C.R.S. 1973 for of statutory inspection by framework and members prehensive copying, state and governments gov- of records maintained local and by public, et et seq. seq., (sections 24-72-201 and 24-72-301 agencies ernmental 1973, which we cite as C.R.S. will the Colorado records “open infra effect, the contend that petitioners 24-72-204(3)(a)(II) In sections laws”). 24-72-305(5) and constitute from civil within the privileges meaning 26(b)(1). of C.R.C.P matter, regulate, general
The records laws as a the in open of records without “any person,”6 and spection copying governmental by inspection limitation as to reason or reasons which undert However, careful key aken.7 was to limit of the legislature provisions laws, records those as “other open making provisions except applicable law” as rules by “prohibited by wise or provided except by promulgated of sections E.g., by the order court.” 24-72- supreme sure 5 ery C.R.S. 1973 contention to October [6] “Freedom of Information [4] plicable [7] (1976)), Sections The Specifically, Denver of petitioners relevant, to the facts of this case the federal “Government 13, 1978, Publishing 24-72-201 and (1978 Supp.). we endorse the issuance of a wholly nonprivileged specified provisions also contend Pub.L. No. Co. without 24-72-203(1), Act” v. Dreyfus, information to the claimant and his that 95-454, merit. (5 by in the Sunshine Act” U.S.C. virtue of section of 92 Stat. 184 Colo. C.R.S. the federal § protective [552] 1973, 1225), which files and (1976 288, and “Privacy 24-72-204(l)(b), order under C.R.C.P. [520] (5 & sections U.S.C. Supp. P.2d 104 Act of 1974” I attorney. § consider to have 24-72-301(2) 1977), 552b C.R.S. 1973. are (1976)), as amended exempted 26(c), (5 and U.S.C. and limiting been 24-72-304(1), We from discov the federal by made find this § disclo Act of 552a ap
177
1973,
C.R.S.
24-72-204(3)(a),
and
and
203(1), 24-72-204(l)(c)
(2)(a),
and
C.R.S. 1973
24-72-304(1)
24-72-305(l)(b)
(5),
and sections
this
the context of
limiting language,
We construe
(1978 Supp.).
of the
case,
rules
civil
as
procedure
expressive
as
reference to the
of
whether disclo-
weigh
a court should consider and
intent that
legislative
Further,
indi-
language
interest.
such
public
sure would be contrary
records laws would
open
did not intend that
legislature
cates
records laws are
litigation.
open
civil
discovery practice
supplant
regulation
entirely
gen-
different situation
“directed toward
citizen
business
by any
during general
records
exploration
public
eral
Honolulu,
420, 424,
v.
55
520
County
Haw.
hours.” Tighe City
charter,
1345,
city
1348
Honolulu
(1974) (holding provision
P.2d
laws,
as a limitation
inapplicable
to the Colorado
records
analogous
open
26
This view of the
(b)(1)).
Hawaii Rule of Civil Procedure
consistently
the construction
the Colorado
records laws
open
parallels
records
courts on the federal
counterpart
open
the federal
placed
Act,”
laws,
5
&
I
(1976
the “Freedom Information
U.S.C.
552
Supp.
§
95-454,
13, 1978,
1977) as
,
Pub.L. No.
92 Stat.
amended
Act Oct.
Court,
Kerr
(9th Cir.
v. United States District
V. the and direct petitioners the relief by We alternative grant conduct a second in camera examination court to respondent the and order findings, make reports, files and S.I.B. appropriate subject the to reports, appro- materials contained in discovery of orders, in this expressed opin- consistent with the views protective priate ion. addition, items of material the court all place copies
In trial shall file, shall the rec- sealed which file be part not discoverable in a held case. ord the
Rule made absolute. ERICKSON, GROVES, JUSTICE DU- JUSTICE
JUSTICE concur. BOFSKY specially ERICKSON specially concurring:
JUSTICE result, I the I cannot to the analysis While concur in subscribe set view, the result case. In reaching my forth the in this Part majority with the II of the Court’s breaks established wisdom that the opinion and, instead, courts refrain from issuing advisory should limit opinions, hand. themselves to case at I feel that the far wiser course deciding here set rule lower to would to out a clear for the court follow. It simply cases, situations, should be left for future which concrete fact present of the test out the various elements set the Court expound upon today. recognizes that a claim of an official or executive majority privi- factors, number lege courts balance a includ- requires conflicting case, litigant’s need for information to his ing prove government’s disclosure, and, interests in most preventing perhaps important, strong disclosure. See the case note in favor of full public policy discussing Rizzo, Frankenhauser 59 F.R.D. 339 (E.D. 1973), Pa. Fordham however, L. 675 (1974). By Rev. its opinion, majority appears that must be limited to the deemphasize unique hand; facts case at seldom will the calculus used in presented by one case resolving be useful in another. The long on the majority’s exposition elements of the Frankenhauser will test obscure the fact that trial be given must a wide latitude in resolving claims of executive privi- lege. on, the in terms of the wide
Early majority speaks latitude to be given to the trial court in balancing the factors competing involving in claim of Frankenhauser, however, Its privilege. exegesis belies posture this I fear that result be that Court may has bound itself prematurely in cement. In of this one support proposition, only need refer to the major- 5, 6, 7, the Frankenhauser case ity’s which, reference to 8 in points although part majority’s holding, are clearly relevant case.1
IWhile the Frankenhauser am in favor of in its adopting gen- test form, eral I would range not limit the to be factors considered by the court, trial or dictate an future analysis, in cases until it is nec- absolutely to do so. could essary Any other bind approach this Court to an interpreta- tion will later to be Bowen, unfortunate. the words of prove Perhaps Co., v. New River Cooke L.J. in (1888), cited in Leflar, L. R. 38 R. Appellate Judicial Opinions state the case most eloquently: “I am reluctant to extremely decide what anything except necessary case, the special because I believe my long that judgments experience *14 come far weight with more when come gravity upon points which view, that but does not make a Reversible error question may is not finding yet occur, before this court and should not be on each of the in my opinion, specific in a case elements in merely disposed because a trial Frankenhauser this case. judge test. In considers my dicta, decide, that obiter like the bound and I believe Judges are in a home to roost sooner later chickens of come destiny, proverbial them, and are a who have uttered Judges uncomfortable very way in of embarassment future cases.” source great test and enunciation of I would limit this case an facts hand. the test to the apply leave it for the lower court me join GROVES and JUSTICE DUBOFSKY JUSTICE concurrence. special
No. 79SA567 for the Tenth Judicial v. The District Court Adrian Sisneros Abram, District, Colorado; and Honorable Donald District State District, State of Colorado in and for Tenth Judicial Judge 55) (606 P.2d February Decided